Physician-Assisted Dying in Canada: The Supreme Court of British Columbia’s Recent Ruling in Carter v. Attorney-General of Canada
June 18, 2012
BY Alison Taylor
18 June 2012—Justice Lynn Smith of the BC Supreme Court handed down her decision on Friday in the case of Carter v. the Attorney-General of Canada, 2012 BCSC 886, ruling that the Criminal Code provisions which prohibit assisted suicide in Canada were unconstitutional. Justice Smith declared the relevant provisions of the Criminal Code invalid, but suspended the operation of the declaration for one year in order to permit the government time to consider and draft appropriate legislation. However, Her Honour gave Ms. Gloria Taylor, one of the plaintiffs in the proceeding, a constitutional exemption from the application of the Criminal Code provisions, permitting her the option of physician-assisted death under a number of conditions.
Ms. Taylor suffers from amyotrophic lateral sclerosis, also known as Lou Gehrig’s disease. It is a neurodegenerative disorder that causes progressive muscle weakness, resulting in total paralysis, causing the patient to lose use of limbs, to be unable to chew and swallow and eventually unable to breathe. The other three plaintiffs in the case included: Lee Carter and her husband Hollis Johnson, who, helped her mother obtain an assisted death in Switzerland, where it is legal to do so; a Canadian physician who would be willing to perform assisted dying in Canada; and the BC Civil Liberties Association.
In a lengthy judgment, Justice Smith discusses in detail what she found, based on the evidence presented, to be the risks associated with permitting physician-assisted dying. Areas of concern were identified as competence of the individual, which included cognitive impairment and depression; voluntariness; informed consent; ambivalence; and vulnerable individuals, in particular the elderly and those with disabilities.
After reviewing evidence presented with respect to other jurisdictions which permit physician-assisted death, Justice Smith found that “the jurisdictions that permit physician-assisted dying have created safeguards to ensure that only defined categories of patients are involved, and that protocols including second opinions and reporting requirements are followed.” Her Honour found that there were “differing levels of compliance with the safeguards and protocols in permissive jurisdictions” but ultimately concluded that there was no evidence in these jurisdictions of an “inordinate impact on vulnerable populations” or “either a negative or a positive impact … on the availability of palliative care or on the physician-patient relationship.”
After a thorough review of the evidence, Justice Smith found that there could be “no conclusion other than that there are risks inherent in permitting physician-assisted death, and that the utmost care would be needed in designing and managing a system which would allow it, in order to avoid those risks” [para 854]. However, Her Honour ultimately found that “the risks inherent in permitting physician-assisted death can be identified and very substantially minimized through a carefully-designed system imposing stringent limits that are scrupulously monitored and enforced.” [para. 883]
The Criminal Code provisions were found to be unconstitutional as unjustifiably infringing both the equality rights provision, s. 15, and s. 7, the right to life, liberty and security of the person of the Canadian Charter of Rights and Freedoms.
Justice Smith reasoned that the law is discriminatory because “the provisions regarding assisted suicide have a more burdensome effect on persons with physical disabilities than on able-bodied persons”. Essentially, the rationale offered is that law does not prohibit suicide itself, but only assisting suicide, therefore, able-bodied people are able to take control over their end-of-life circumstances and decisions in a way that disabled people cannot, which perpetuates disadvantage. Justice Smith stated:
“The impact of the distinction is felt particularly acutely by persons such as Ms. Taylor, who are grievously and irremediably ill, physically disabled or soon to become so, mentally competent, and who wish to have some control over their circumstances at the end of their lives.” [para. 15]
The Court found that the legislation’s infringement of s. 15 was not demonstrably justified under s. 1 of the Charter as, while the purpose of preventing vulnerable persons from being induced to commit suicide was pressing and substantial, an absolute prohibition was not necessary: “a less drastic means of achieving the legislative purpose would be to keep an almost-absolute prohibition in place with a stringently limited, carefully monitored system of exceptions allowing persons in Ms. Taylor’s situation – grievously and irremediably ill adult persons who are competent, fully-informed, non-ambivalent and free from coercion or duress – to access physician-assisted death.”
Life, Liberty and Security of the Person
The Court recognized that the s. 7 rights of the plaintiffs to life, liberty and security of the person, were each affected differently. With respect to Ms. Taylor, the Court followed the reasoning in Rodriguez, identifying that Ms. Taylor’s rights to liberty and security of the person were affected by the legislation. However, the Court also found that the legislation impinged on Ms. Taylor’s right to life: Ms. Taylor might take her own life earlier than she otherwise would have as a result of not having the option of a physician-assisted death should she come physically unable to do so on her own. The Court found that Ms. Carter and Mr. Johnson’s liberty were affected as they were theoretically at risk of incarceration for having assisted Ms. Carter’s mother to obtain an assisted death in Switzerland.
Justice Smith found that the requisite principles of fundamental justice were not present in the denial of the plaintiffs’ s. 7 rights. Distinguishing the case of Rodriguez, Justice Smith concluded that the law is overbroad and “the legislative response – an absolute prohibition – is grossly disproportionate to the objectives it is meant to accomplish”. As such, the s. 7 infringement was found to be unjustifiable and therefore unconstitutional.
The Netherlands, Belgium, Luxembourg and Switzerland are the only Western countries that currently permit physician-assisted dying, as do the three American states of Oregon, Washington and Montana. Pending the outcome of any appeal to the Supreme Court of Canada, and the lapse of the 12 month suspension period provided to the government, Canada will join the ranks of these countries in legalizing physician-assisted death.